The D.C. Circuit Expands the Scope of Honest-Services Fraud and Illegal-Gratuities Prosecutions in Ring v. United States

The U.S. Court of Appeals for the D.C. Circuit in United States v. Ring recently upheld a conviction under the public sector “honest-services” fraud statute and the “illegal-gratuities” statute. Notably, the court: (1) expanded the definition of “corrupt payments” for purposes of the honest-services fraud statute; and (2) expanded the definition of “official action” for purposes of the illegal-gratuities statute.

Based upon Ring, lobbyists will need to be particularly careful when providing gifts (other than campaign contributions) to public officials, as those gifts may be viewed as a form of bribery. In addition, all persons (regardless of whether they are lobbyists) will need to be particularly careful when sending gifts to government employees in exchange for favors (such as expediting a visa application). Former government employees — now part of the “revolving door” — will need to be particularly careful in not seeking favors from current government employees, as those practices may be viewed as an illegal gratuity.

Background

The defendant, Kevin Ring, was a former lobbyist and associate of Jack Abramoff. While his primary activities involved campaign fundraising, Ring also treated public officials to dinners, travel, concerts, and other forms of entertainment.

In 2010, Ring was convicted on three counts of honest-services fraud, one count of paying an illegal gratuity, and one count of conspiracy to pay an illegal gratuity. During trial, the government offered evidence that Ring had provided meals, tickets, and travel to public officials, which were linked to official acts that benefited Ring and his clients. After Ring was sentenced to 20 months in prison, he challenged his conviction on appeal.

Honest-Services Fraud

The honest-services statute criminalizes “a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. §1346. The landmark Enron scandal decision, Skilling v. United States, 130 S. Ct. 2896 (2010), clarified the doctrine as applied in § 1346. In order to avoid a finding of unconstitutional vagueness, the Supreme Court in Skilling limited the scope of the honest-services fraud statute to bribery and kickback schemes, as opposed to “undisclosed self-dealing by a public official or private employee.”

Ring was prosecuted under a bribery theory of honest-services fraud. This meant that the government needed to prove the elements of bribery, 18 U.S.C. §201(b)(1), in order to convict Ring of honest-services fraud. That is, the government needed to prove that Ring gave gifts with the “intent” to “influence an official act” by way of a corrupt quid pro quo. The District Court in Ring instructed the jury that the government did not have to show that the quid pro quo was explicit, or even that the public officials had accepted Ring’s gifts, in order to prove bribery.

Ring’s trial arose just a few months after the Supreme Court’s decision in Skilling. On appeal, Ring argued that the District Court’s jury instructions were flawed to the extent that the court instructed that an implicit quid pro quo was sufficient to prove bribery and that the public official did not need to accept the gift.

The D.C. Circuit upheld the District Court’s instructions, holding that the government met its burden of proof by establishing the existence of an implicit quid pro quo when the “thing of value” being offered was something other than a campaign contribution. First, the court recognized that because campaign contributions implicate First Amendment concerns, the government must establish an explicit quid pro quo to support a conviction under the honest-services statute. Second, the court recognized that when a lobbyist offers “things of value,” other than campaign contributions, such as hockey tickets, the First Amendment interest is “de minimis,” and therefore does not require the government to prove an explicit quid pro quo to prove bribery. In other words, when a lobbyist offers “things of value” other than campaign contributions, the government can establish bribery, and therefore a violation of the honest-services fraud statute, without establishing an explicit agreement between the lobbyist and the public official.

In addition, the D.C. Circuit held that the government did not need to prove that the public official accepted the implicit quid pro quo — that is, the gift — in order to prove that the lobbyist violated the honest-services fraud statute. The D.C. Circuit reasoned that bribery does not require an explicit agreement between the parties, or the actual acceptance of the bribe by the offeree (in this case, the pubic official). The crime of bribery was complete as soon as Ring offered the gift to the public official with the intent to receive an official act in return.

Illegal-Gratuity Statute

The illegal-gratuity statute makes it unlawful to “give[], offer[], or promise[] anything of value to any public official . . . for or because of any official act.” 18 U.S.C. § 201(c). Ring was charged with paying an illegal gratuity when he gave Washington Wizards basketball tickets to an attorney at the Justice Department’s Intergovernmental Affairs Office as a reward for helping to expedite review of a visa application for a foreign student seeking to attend a private school. Upon receiving the request, the DOJ attorney forwarded Ring’s email to another DOJ official who recommended that he contact U.S. Citizenship and Immigration Services (USCIS). The DOJ attorney called a USCIS official’s secretary and urged her to expedite the application, and forwarded Ring’s email to the secretary along with a personal note. The secretary then passed the email along to five different USCIS officials in an effort to “make sure . . . action was being taken to answer the request.” Within a single business day, the USCIS agreed to expedite the visa application.

After learning that the DOJ attorney’s efforts had been successful, Ring sent Abramoff an email reporting that the attorney had “[h]elped on the school and [was] now looking for tickets” to two Washington Wizards basketball games. The DOJ attorney received the tickets, which were paid for by Abramoff.

On appeal, Ring did not dispute that he provided the tickets “for or because of” the DOJ attorney’s assistance with the visa application. Rather, Ring argued that the government failed to offer sufficient evidence that the attorney took an “official action” within the meaning of the illegal-gratuity statute. Specifically, Ring argued that the DOJ attorney’s forwarding of the email did not constitute an “official act” because the DOJ attorney lacked decisionmaking authority with respect to visa applications. Ring argued that the forwarding of the email was nothing more than an “informational inquiry,” and therefore did not qualify as an “official act.”

The D.C. Circuit rejected Ring’s argument, and held that a rational jury could have found that the DOJ attorney’s efforts to expedite the visa application qualified as “official action.” The court noted that the DOJ attorney was a member of the Intergovernmental Affairs Office, and therefore part of his job was to reach “across agency boundaries to get things done.” The court also held that even though the DOJ attorney did not have ultimate decisionmaking authority regarding the visa application, he nonetheless “influenced” the visa application process, and therefore a rational jury could have concluded that the attorney engaged in “official action.”

There are two key takeaways from Ring. First, lobbyists must be particularly careful when providing gifts (other than campaign contributions) to public officials, as those acts could be viewed as an implicit quid pro quo and give rise to honest-services fraud. Because the government no longer has to establish an explicit agreement between the lobbyist and public official, the burden of proof on the government is significantly lower. This decision should have a major impact on the lobbying industry, as it will constrain lobbyists from engaging in activities that were previously lawful.

Second, this decision makes clear that everyone (even apart from lobbyists) needs to be careful when seeking favors from government employees, as those favors may be viewed as “illegal gratuities” if gifts (such as basketball tickets) are involved. Even if a government employee does not have decisionmaking authority over a particular request, the fact that he or she can “influence” the decision may suggest that the government employee engaged in “official action.” Former government employees, now in the private workplace, should be particularly careful when seeking favors from current government employees. Even though there is a “revolving door” between the government and the private workplace, appearances do matter, and former government employees should be especially careful when seeking favors from their old friends and contacts.

On March 11, 2013, Kevin Ring petitioned the D.C. Circuit asking that the case be reheard by the full Circuit. The instant decision was by a unanimous three-judge panel of the D.C. Circuit. If the D.C. Circuit denies the en banc review, then Ring may petition the U.S. Supreme Court for review.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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